Without courts that are respected and obeyed, constitutionalism – as a limitation on state scope and power – cannot work. But this principle can be taken too far when there is uncritical deference to the judiciary even when it obviously and unambiguously errs in its judgments.
This is, for now, the fourth and final part of my response to Pierre de Vos’s pseudo-jurisprudence surrounding expropriation without compensation and the Expropriation Act in particular.
Part 1 responded to De Vos’s dishonest and inadequate reading of a peer-reviewed journal article that I wrote.
Part 2 focused on De Vos’s opportunistic approach to legal philosophy.
And Part 3 concerned De Vos’s dismissive conceptualisation of section 25 of the Constitution – the right to property.
This part will consider the underlying theme that always bubbles up in debates between De Vos and myself. This is De Vos’s – and certainly others’ – tendency to uncritically defer to the courts (when their judgments suit his political convictions).
Picking and choosing is the way of the world
De Vos accuses those who oppose expropriation without compensation – which he here euphemistically calls “expropriation for just and equitable compensation” – of never mentioning the precedents set by the Constitutional Court that, in his view, makes an “absolutist” or “libertarian” approach to property rights incompatible with section 25 of the Constitution.
He refers specifically to the judgment of PE Municipality v Various Occupiers, wherein the Court said:
“[we must] move away from a static, typically private-law conceptualist view of the Constitution as a guarantee of the status quo to a dynamic, typically public-law view of the Constitution as an instrument for social change and transformation […]”
Firstly, it is important to note that, in legal discourse and practice, it is the way of the world for opposing parties to emphasise the judgments that lend support to their positions, and to de-emphasise, or better yet, show why the judgments that do not support their positions are wrongly decided.
For De Vos to suppose that anyone with a passing interest in secure property rights – as clearly secured by section 25 – would regard PE Municipality with anything other than circumspection, is bizarre. It would be like supposing that anti-Apartheid lawyers should have regarded the Appellate Division’s “separate but equal” precedent in Minister of Posts and Telegraphs v Rasool as an accurate and authoritative reflection of the best of our legal tradition.
Moreover, there are various judgments by our courts that I have never seen De Vos or his fellow travellers among leftist jurisprudence refer to. Why? Because the judgment does not serve their positions. This is, simply, how things work (the Critical Legal Studies school of thought that shares much intellectual baggage with De Vos calls this “indeterminacy”).
As one of the foremost proponents of using section 36 – the limitations provision – to set aside the rights and liberties of the people, I have predictably not seen De Vos make use of the 1998 judgment of De Lange v Smuts, for example.
In this judgment, the Constitutional Court held that when a constitutional right is to be limited, the state must show that it is justified, rather than expecting the party whose right is being limited to show that it is not justified. The Court said:
“It is for the party relying on justification to establish those facts and failure to do so may result in such party being unable to establish justification. A court cannot be asked to speculate on justification in the absence of any factual basis therefor.”
To eagle-eyed jurists with an interest in legal history and comparative law, this would stand out as nothing less than the constitutional codification into our law of the American Lochner doctrine – a doctrine much-derided by those in De Vos’s neck of jurisprudence.
The Court makes it clear that “the importance of the purpose of the limitation” – one of the legs of section 36(1) – includes an inquiry into the effectiveness of the limitation: does it actually, factually, achieve the desired outcome? Here the Court also inquired into the potential of alternative (less limiting, less invasive) means that could prove just as or more effective as the limitation in question. The Court reasoned that showing less restrictive means that other jurisdictions have utilised, on their face, could help establish that the restriction contemplated by the South African government is unjustifiable.
De Lange places a significant burden of proof on the state to show – with reference to facts and not mere assertion – that its limitation on constitutional rights is constitutionally justifiable. This is of course virtually never done in practice by the state or required by the post-De Lange courts.
De Vos understands that almost everything the state does in the name of “transformation” will struggle to meet this threshold, and thus, De Lange turns into invisible, jurisprudential vapor.
If we are to accept that the Expropriation Act is constitutional (it is not), then it does not take much of an imagination to know how section 12(3) of the Expropriation Act (the nil compensation allowance, as a limitation on the right to compensation) honestly subjected to section 36 and the De Lange standards would fare.
Reaching for the stars
I have never seen De Vos quoting De Lange favourably in this respect, so that he would expect me or other constitutionalists to quote the Court’s PE Municipality judgment favourably, is an unreasonable expectation.
Constitutionalists do not hang onto the words of clearly erroneous Constitutional Court judgments as more authoritative than the constitutional text. The constitutional text must be where we start our inquiry, and then only form there can we evaluate whether the Court got it right or wrong.
In the case of PE Municipality, the Court obviously reached for the stars, outside of the Constitution, to grab onto something that told it section 25 envisioned reforming property rights from a “private-law” to a “public-law” concept. This is a preposterous notion brimming with lack of conceptual clarity.
The Constitution says no such thing, and if we are trying to find “implicit” meanings in the Constitution (in other words, reading-in a value system), those meanings can only ever be construed on the strength of the tradition of constitutionalism – which places a premium on the protection of property and the limitation of state power.
The Court here also fell into the trap of construing “the Constitution as an instrument for social change and transformation”.
This is not what a constitution is, and the operative provisions of the Constitution itself do not create this impression. In fact, the Bill of Rights – qua bill of rights! – is all about protecting the legally recognised interests of legal subjects against the social engineering desires of the political elite (always dressed in the garb of “social change” or “justice”, of course).
If one understands the context in which the Constitution was adopted, furthermore, this is an unavoidable conclusion.
For a century, the South African state had engaged in social engineering to the resolute opposition of capitalists, liberals, socialists, and Africanists. At long last, after a difficult struggle against unbridled state discretion under a sovereign parliament, a supreme constitution with a bill of rights was adopted – to stop the social engineering.
To read into the Constitution the notion that it countenances more social engineering against the very liberties it was adopted to protect, would be to divorce the constitutional text not only from constitutionalism – which is legally and conceptually impermissible – but from its own social context.
Ideologising the Constitution
De Vos goes on to argue that “pretending that the text of the Constitution and the binding precedent of the Constitutional Court does not exist, and that the text happens to mean what your ideology and political strategy requires it to mean, is both dishonest and opportunistic.”
As I established in the previous parts, this is extremely rich coming from De Vos, who glosses over the appearance of the words “amount,” “payment,” and “compensation” in sections 25(2) and (3) of the Constitution as if they are simply not there.
His ideology demands of him to perceive an allowance for “nil compensation” in section 25, and thus he has duly perceived it. What he accuses constitutionalists of doing is something he himself does. De Vos and many of those in the judiciary who share his convictions are the masters of bending the constitutional text to mean what their “ideology and political strategy requires it to mean.”
In the process, they gaslight ordinary South Africans – who do not and cannot spend their days following these convoluted discourses in the courts or journals – into believing that the plain text of the Constitution, that everyone can read and understand, means something completely different from what it says.
Constitutional supremacy
De Vos ends his article with the send-off that the Expropriation Act’s constitutionality would need to be based on “the text of the Constitution and the jurisprudence of the Constitutional Court, and not what some opponents of the Act might imagine the Constitution to say.”
He is purposefully mixing two things together here.
What the Constitution says and does not say about expropriation and compensation is not hidden.
The South African Constitution was written with plain language foremost in mind. It is a very easy document to read, which makes it all the more frustrating when academics like De Vos and Elmien du Plessis claim to find an allowance for authoritarian phenomena like “nil compensation” expropriations in a text that clearly requires compensation.
The text is easy.
The Constitutional Court is a different matter.
The Constitution is formally supreme. One might – as I do – disagree with some provisions of the Constitution, in the context of testing the Constitution against itself, it cannot err. Any seeming contradiction must be regarded and interpreted as coherent, especially with the tradition of constitutionalism and the founding provisions of the text in mind.
The Constitutional Court, and the courts more broadly, are not the Constitution, and are therefore not supreme.
This is a body of people, who can and do err. Moreover, it is a body of politically appointed people. And even more particularly – given that the Constitution is also itself a political text – the court is a body of partisan-appointed people.
To put it as bluntly as I can – without implying anything – the current bench of the Constitutional Court is in place, at least, because the African National Congress (ANC) tolerates it, and at most, because the ANC wants it. Any objection from the ANC during the appointment process means the bench looks different. The composition of the court cannot be divorced from South Africa’s partisan-political reality.
The text of the Constitution, on the other hand, must at least to a degree be divorced from South Africa’s partisan reality, as the Constitution is not – no constitution is – meant to just be a policy tool in the hands of the present incumbent government. It is meant as an enduring, basic framework, that extends beyond the terms of office of specific political formations or even political convictions.
Khoi genocide
If the Constitutional Court were to read the Constitution, and “find” that it requires the South African government to commit genocide against the Khoi minority, De Vos would rightly conclude that this is simply wrong, and that the judgment itself – yes, the judgment of the Constitutional Court – is unconstitutional, and obviously unenforceable.
The Court’s co-equal branches of Parliament and the executive would be required by the Constitution to disobey that judgment.
While the constitutional text itself does not make explicit provision for disobeying an unlawful court order from the highest court, it is plainly implicit and not merely consistent with the tradition of constitutionalism, but required by it.
After all, section 2 of the Constitution provides that, “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
It is the Constitution that is supreme. And any law – including judgments by the courts – that are inconsistent with the Constitution, are invalid.
Of course, not every error of the Constitutional Court rises to the status of countenancing genocide. But all errors by the Constitutional Court plainly qualify as invalid if those judgments are inconsistent with the Constitution.
What is to be done?
While these judgments are, in the moment, applicable law, it is the constitutional obligation of jurists and the legal community to treat those judgments as anti-canon, and to constantly and without exception petition the Constitutional Court to reverse those judgments and render constitutionally compliant judgments in their stead.
Judgments like S v Jordan (which recognised the validity of a prohibition on prostitution, despite the Bill of Rights plainly guaranteeing employment freedom) and Agri SA v Minister of Minerals and Energy (which countenanced expropriation without compensation by allowing government to hide behind trick-words like “custodianship” despite the Constitution requiring compensation and a substance over form approach), and so forth, are plainly unconstitutional judgments by the Court, with its pronouncements basically and plainly inconsistent with the text of the Constitution.
Yes, these are applicable law, but they cannot and may not be treated as the legally correct position. An amicus curiae, or even parties to cases that come before the Court, have an obligation to point out to the bench the errors of these judgments and to encourage the setting of a revised precedent.
Treating the judgments of the Constitutional Court as co-equally supreme with the constitutional text itself is impermissible. The Constitution does not require or allow such an approach – which has always been De Vos’s approach for those judgments he approves of.
So, while De Vos is correct that the Expropriation Act would need to be challenged on the basis of the constitutional text – and at least reckoning with the precedents of the Constitutional Court – the Court’s own “imagination” about what the Constitution says (when in fact the Constitution says no such thing) must be addressed.
Healthy and normal to disagree with the courts
Just like struggle lawyers in the 1970s and 1980s felt free to note the South African courts’ abandonment of transcendent legal norms and standards, and abolitionist lawyers in the United States took only passing interest in the pro-slavery judgments of the Supreme Court, it is perfectly allowable to question whether South Africa’s courts today have a proper grasp of their function.
Nobody should be so bold as to propose that the Constitution itself expects that the courts will always be right. The provisions of sections 167 and 172 of the Constitution establishing the jurisdiction of the Constitutional Court to decide matters of constitutionality are pragmatic phenomena: when there is a legal dispute, a decision must be made for the time being. That decision will be binding until it is reversed.
None of this even approaches a conclusion of necessary in-principle correctness. A precedent is always contestable and should be contested by constitutionalists if it is inconsistent with the basic elements of constitutionalism.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
If you like what you have just read, support the Daily Friend